6.  The applicant was born in 1959 and comes from Almaty, Kazakhstan. He is currently residing in Moscow.
7.  In the 1990s the applicant was an entrepreneur in Almaty.
8.  On 3 August 2004 the applicant was detained in Almaty on charges of involvement in the murder of Mr Ch., a crime which had been committed in 2001. In the applicant’s submission, he was beaten upon detention by police officers and later by his fellow inmates. He did not complain about these beatings at the national level. No documents or other evidence were provided by the applicant in this respect.
9.  On 27 September 2005 the Almaty City Court acquitted the applicant and two other men of the murder. The court noted the complaints of the two other men, but not of the applicant, that investigating officers had threatened them in order to obtain confessions.
10.  In November 2005 the applicant and his family moved to Moscow.
11.  On 20 December 2005 the Supreme Court of Kazakhstan, upon appeals by the victim’s family and the prosecutor’s office, quashed and remitted the judgment of the Almaty City Court. The applicant was represented at the hearing by his lawyer.
12.  On 14 February 2006 the Almaty City Court ordered the applicant’s remand in custody in connection with the criminal proceedings pending against him and put him on the wanted list. The charges against the applicant included, in particular, the creation of an organised crime group in 2001 in Almaty, purchasing and trafficking of arms, banditry and aggravated murder of Mr Ch.
13.  At 10.30 p.m. on 3 May 2009 the applicant was arrested by policemen of the Yuzhnoye Butovo district department of the interior (Moscow) for the reason that his name had appeared on the international wanted list. On the same date the applicant was remanded in custody in Moscow remand prison SIZO-4 (“the remand prison”).
14.  On an unspecified date following the applicant’s arrest, the Kazakhstan Prosecutor General’s Office informed the Zyuzinskiy Inter‑District Prosecutor’s Office (“the district prosecutor’s office”) by fax of their intention to request the applicant’s extradition and asked that office to ensure that the applicant remain in custody pending such request. They referred to the Almaty City Court’s decision of 14 February 2006.
15.  On 1 June 2009 the Kazakhstan Prosecutor General’s Office sent a request to the Russian Prosecutor General’s Office for the applicant’s extradition pursuant to the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 (“the Minsk Convention”). The request contained assurances that the applicant would not be extradited to a third State without the Russian authorities’ consent or be discriminated against on any grounds, that he would be prosecuted only for the crimes mentioned in the extradition order, namely, banditry and aggravated murder, and that he would be free to leave Kazakhstan after having served the sentence imposed by a court. They also referred to a death penalty moratorium in place in Kazakhstan and stated that capital punishment would not be requested in respect of the applicant. They appended the judgments of the Almaty City Court of 27 September 2005 and of the Supreme Court of Kazakhstan of 20 December 2005, as well as the Almaty City Court’s decision of 14 February 2006.
16.  On 18 June 2009 the Kazakhstan Prosecutor General’s Office sent their Russian counterparts an amended version of the extradition request, indicating the applicant’s correct date of birth.
17.  The Russian authorities carried out an extradition check, which established that a case charging the applicant with murder and banditry had been pending before the Almaty City Court and that the applicant had been placed on a wanted list on 14 February 2006.
18.  The Russian Prosecutor General’s Office sent requests for information to the Russian Ministry of Foreign Affairs and to the Russian Federal Security Service in order to verify the applicant’s allegations of a risk of him being subjected to ill-treatment if extradited. The Russian Ministry of Foreign Affairs and the Russian Federal Security Service replied that they had no knowledge of any circumstances that would preclude the applicant’s extradition.
19.  On 14 July 2009 the Russian Prosecutor General’s Office granted the Kazakhstan authorities’ request and ordered the applicant’s extradition. They decided to extradite the applicant on the charges of aggravated murder and banditry, as these were offences punishable under Articles 105 § 2, 209 § 1 and 222 § 3 of the Russian Criminal Code (aggravated murder, banditry and aggravated illegal possession of arms), noting that the statute of limitations for these offences had not expired either in Russia or in Kazakhstan. They further pointed out that, in line with the Minsk Convention and the Russian Code of Criminal Procedure (“CCrP”), differences existing in the classification of these offences and their constituent elements under Russian and Kazakhstan criminal law were not sufficient grounds for refusing extradition. The extradition order also referred to information provided by the Federal Migration Service (“FMS”) confirming that the applicant was a citizen of Kazakhstan and did not have Russian nationality. The Russian Prosecutor General’s Office concluded that there were no obstacles to the applicant’s extradition to Kazakhstan. The extradition order read, in so far as relevant, as follows:
“Mr O. K. Oshlakov is charged with, in 2001, [having] created and managed an organised armed group and ... purchased arms ... and ... committed murder ...”
20.  On the same date the Russian Prosecutor General’s Office informed the Kazakhstan Prosecutor General’s Office of the extradition order and asked them to keep their Russian counterparts informed of the outcome of the criminal proceedings against the applicant. Also on the same date the applicant was notified of the order and advised of the possibility of appealing against it.
21.  The applicant appealed against the extradition order to a court. He stated that the charges against him were unfounded and that, if extradited, he would be subjected to persecution by the Kazakhstan police, who had previously threatened him in order to extract a confession to the murder. He stressed that he was at risk of being abducted or killed by police officers on his way back to Almaty. He also feared for the safety of his daughter and ex-spouse, both Russian nationals. The applicant further asserted that he would not be given a fair trial. He also claimed that he would not be able to freely practice his religion, Orthodox Christianity, in Kazakhstan and would be discriminated against on account of his ethnic origin. Finally, the applicant referred to his being ill with thyroid cancer. The applicant’s counsel added that the illness rendered him unfit for prolonged detention.
22.  On 28 August 2009 the Moscow City Court upheld the extradition order. It stated that the applicant was a Kazakhstan national and did not hold a Russian passport and thus could be extradited from Russia. The applicant had only applied for asylum after his arrest in Russia. Referring to the assurances by the Kazakhstan authorities contained in the extradition request, the court dismissed the applicant’s allegations of persecution on ethnic grounds. It also rejected his reference to possible ill-treatment as unsubstantiated and found that the applicant’s state of health was not such as to prevent his detention pending extradition.
23.  The applicant lodged an appeal with the Supreme Court of Russia, claiming that police officers in Kazakhstan wanted to steal his property, that if extradited, he would face a real risk of ill-treatment, which was reportedly widespread in penal institutions in Kazakhstan, and that he suffered from cancer and thus should not be kept in detention.
24.  On 13 October 2009 the Supreme Court of Russia upheld the extradition order in the final instance. It took into account the diplomatic assurances provided by the Kazakhstan Prosecutor General’s Office in the extradition request to the effect that the applicant would only be prosecuted for the offences stated in the extradition request, that he was not being persecuted on political grounds and that he would not be discriminated against. The Supreme Court concluded that the applicant had failed to present corroborative evidence that, if extradited to Kazakhstan, he would be subjected to a real risk of ill-treatment and that the Kazakhstan police wanted to take over his property. The applicant’s medical condition did not preclude his detention. His detention in Russia was lawful, as it was based on the Almaty City Court’s decision of 14 February 2006.
25.  On 28 October 2009 the Court indicated to the respondent Government that the applicant should not be extradited to Kazakhstan until further notice.
26.  On 29 October 2009 the Federal Prison Service of Russia informed the Russian Prosecutor General’s Office that the Court had indicated to the Russian authorities that the applicant’s extradition should be stayed until further notice.
27.  Further to the Court’s request, the Russian Government forwarded assurances provided by the Kazakhstan Prosecutor General’s Office on 9 November 2009. They confirmed the assurances previously given and also contained specific guarantees that the applicant would not be subjected to torture or inhuman and degrading treatment and that he would enjoy all procedural safeguards provided by the United Nations International Covenant on Civil and Political Rights of 16 December 1966, which had been ratified by Kazakhstan in 2005. The Kazakhstan authorities further undertook to comply with Articles 2, 3, 5, 6, 7, 13 and 14 of the Convention, in particular, to ensure that the applicant would have a fair trial. They also stated that on 17 December 2003 Kazakhstan had declared a moratorium on the death penalty and, therefore, capital punishment could not be applied to the applicant. Finally, they gave assurances that the applicant would be provided with adequate medical assistance in Kazakhstan and that, if deemed necessary, medical personnel would accompany the applicant from Russia to Kazakhstan.
28.  On 16 February 2010 the Court informed the Government that it had decided to lift the interim measure previously indicated on 28 October 2009 under Rule 39 of the Rules of Court in respect of the applicant.
29.  Following his arrest on 3 May 2009 (see paragraph 13 above), on 4 May 2009 the district prosecutor’s office ordered the applicant’s custodial detention as a measure of restraint in order “to ensure the possibility of extraditing him” on the basis of the Almaty City Court’s decision of 14 February 2006. It cited Article 61 of the Minsk Convention as a legal basis for remand in custody.
30.  On 9 June 2009, after receipt of the Kazakhstan Prosecutor General’s Office’s request of 1 June 2009, the district prosecutor’s office issued a second ruling ordering the applicant’s custodial detention as a measure of restraint on the basis of the Almaty City Court’s decision of 14 February 2006 and pursuant to Article 466 § 2 of the CCrP.
31.  On 28 August 2009, while examining the applicant’s appeal against the extradition order, the Moscow City Court denied the applicant’s application for release from custody on medical grounds for the reason that, according to the information provided by the administration of the remand prison, the applicant had not been suffering from ailments precluding his custodial detention.
32.  On 4 December 2009 the applicant submitted a complaint to the Moscow Preobrazhenskiy District Court. He stated that his continued detention was in breach of Russian criminal procedure and the Convention. He noted that his detention since 3 May 2009 had not been authorised by any court and stressed that his state of health warranted his urgent release.
33.  On 9 December 2009 the Moscow Preobrazhenskiy District Court refused to examine the applicant’s complaint under Article 125 of the CCrP for two reasons. First, the court noted that the complaint should have been lodged with another court, namely, the Moscow Gagarinskiy District Court, which had territorial jurisdiction. Secondly, it pointed out that Article 125 of the CCrP was not applicable in cases concerning the alleged unlawfulness of the complainant’s detention.
34.  On 23 April 2010 the Moscow City Prosecutor lodged a motion before a court asking it to extend the term of the applicant’s detention pending extradition up to eighteen months, that is, until 3 November 2010, for the reason that after the adoption by the Supreme Court of Russia of the Directive Decision on 29 October 2009 judicial authorisation of the extension of a term of detention pending extradition was necessary, and that on 4 May 2010 it would be a year since the first order for the applicant’s custodial detention had been made.
35.  On 30 April 2010 the Moscow City Court granted the request of 23 April 2010 and extended the term of the applicant’s detention pending extradition until 3 November 2010. The decision read, in so far as relevant, as follows:
“The Russian Prosecutor General’s Office’s extradition order in respect of the applicant, upheld by a final decision of the Moscow City Court of 28 August 2009, has not been enforced owing to the indication by the Vice-President of the European Court of Human Rights under Rule 39 of the Rules of Court in case of Oshlakov v. Russia that any actions related to Mr Oshlakov’s extradition [should] be stayed until further notice.
Given that such notice has not been received to date and that there are no reasons for Mr Oshlakov’s release from custody, the court considers that there are factual and legal grounds in this case warranting an extension of the term of Mr Oshlakov’s custodial detention up to eighteen months, that is, until 3 November 2010, which would not be contrary to the requirements of Articles 108 and 466 § 1 of the CCrP regarding choosing and extending [a period of] detention in custody as a measure of restraint in order to ensure the possible extradition of a person to a foreign State for crimes committed on its territory.
The term in question is reasonable, [its extension] is caused by objective circumstances related to the indication made by the [European] Court of Human Rights and the adopted extradition order, and could not be considered as proof of violations of Mr Oshlakov’s rights and freedoms.”
36.  According to the information provided by the Moscow City Court, by 18 May 2010 no appeal had been lodged against the decision of 30 April 2010. The latter thus became final.
37.  On 24 May 2010 the Moscow Babushkinskiy District Court returned the applicant’s complaint of detention in excess of the term provided for by Article 109 of the CCrP to him, owing to the fact that the applicant had failed to specify which particular actions of State officials he was challenging and whether he had applied under Article 125 of the CCrP or under Chapter 25 of the Russian Code of Civil Procedure. The district court advised the applicant of the opportunity to reapply to a court after having amended the text of his complaint. It appears that the applicant did not apply to the district court again, nor did he appeal against its decision.
38.  On 3 November 2010 the applicant was released from the remand prison owing to the expiry of the eighteen-month maximum term of detention pending extradition. As indicated above (see paragraph 6), the applicant is currently residing in Moscow.
39.  On 4 May 2009, while in detention in the remand prison, the applicant filled in a questionnaire in which he indicated that he had come to Russia in 2005 in order to seek treatment for his cancer and that he had not applied for refugee status or for temporary asylum.
40.  On 2 September 2009 the applicant applied to the Moscow Department of the FMS (“the Moscow FMS”) for refugee status, referring to, amongst other things, the risk of persecution by the police in Kazakhstan on account of his entrepreneur status. He submitted that in 2004 upon his arrest he had been subjected to psychological pressure and beaten up by the police.
41.  On 6 October 2009 the Moscow FMS dismissed the applicant’s application for refugee status for the reason that there were no grounds to suggest that the criminal case against him had been opened for persecution on the grounds of belonging to a social, ethnic or political group.
42.  On 27 November 2009 the Federal Migration Service of Russia (“the Russia FMS”) dismissed an appeal lodged by the applicant against the decision of 6 October 2009 by the Moscow FMS.
43.  On an unspecified date the applicant appealed against the Moscow FMS’s decision of 6 October 2009 to the Moscow Babushkinskiy District Court.  On 11 December 2009 the said court returned the appeal to the applicant on the grounds that it did not have territorial jurisdiction and indicated that the applicant should apply to the Moscow Butyrskiy District Court.
44.  On 7 May 2010 the Moscow FMS notified the district prosecutor’s office of the decisions dismissing the applicant’s refugee application.
45.  On 4 June 2010 the Moscow Butyrskiy District Court refused to examine the applicant’s complaint about the FMS decisions on procedural grounds.